Leaked document shows EU is going for a trade deal that will weaken financial regulation

According to a leaked document, the EU is bent on using the TTIP negotiations with the US to get an agreement on financial regulation that, according to this analysis by Kenneth Haar of Corporate Europe Observatory (CEO) and Myriam Vander Stichele of The Centre for Research on Multinational Corporations (SOMO) will weaken reform and control of the financial sector.

If the EU has its way, a final agreement between the EU and the US to establish a free trade and investment agreement the Transatlantic Trade and Investment Partnership (TTIP) will weaken regulation and raise obstacles to much needed reform of the financial sector. That is the conclusion after the leak of an EU proposal for so-called “regulatory cooperation” on financial regulation.1 tabled by the EU in March 2014. Regulatory cooperation is a continuous process of ironing out disagreements and differences between the two Parties to ensure agreement on what constitutes legitimate regulation – which in this case, would serve the interests of the financial industry. In the document, the EU suggests a number of mechanisms that will both scale back existing regulation, and prevent future regulation that might contradict the interests of financial corporations from both sides of the Atlantic. The leak follows news that EU negotiators have increased political pressure on the US to accept negotiations on “financial regulatory cooperation", which the US negotiators have so far refused.2

The document shows that the EU is prioritising the protection of the EU’s banking sector over strict financial regulation and supervision: these so-called “regulatory cooperation” proposals would guarantee that the financial sector is not harmed by measures taken by regulators, would allow EU banks to operate in the US on the EU's (generally laxer) rules, and in general that financial corporations on one side of the Atlantic do not have to abide by host country’s laws but only by home country laws on the other side of the Atlantic. The implications for decision-making on financial reforms and control over the financial sector are serious.

EU and the financial lobby in sync

The political context is clear – and crucial to understand the document. The EU is on the brink of concluding its reform agenda in the aftermath of the financial crisis of 2008 with a set of rules that are weaker than those of the US in key areas such as banking regulation. That has already been the source of friction between the two blocs. The most famous example is probably the attempt of Deutsche Bank’s subsidiary in the US to avoid coming under US rules on capital reserves (which require companies to keep aside a proportion of capital available to avoid risk of collapse or bailout), an avoidance attempt which had been successful until recently when the US authorities closed a loophole used by many foreign banks operating there.3 Considering that Deutsche Bank was one of the biggest recipients of bailout money from the US authorities in the aftermath of the collapse of Lehman Brothers and the insurance giant AIG, a demand that it abides by US rules on capital requirements seems entirely legitimate. But this is resented by the European Commission and financial corporations, as are other US rules to which EU banks in the US are subject.

Similarly, another dispute relates to the United States' financial derivatives regulators the Commodity Futures Trading Commission (CFTC) wanting to subject foreign banks’ worldwide dealings with US banks to US rules.4 In addition they want to require US banks to report their derivatives trading outside the country to the CFTC. This is a logical way to avoid unexpected billion-dollar US bailouts and US central bank lending of the kind that were required in 2008 because the now collapsed US bank Lehman Brothers’ operations in Europe were opaque to, and not controlled by, US authorities – and in which European banks were major recipients of bail-outs.5 But the EU and European financial corporations have come out against such “extra-territorial rules”.6 Through regulatory cooperation in TTIP, the EU wants to rule out such measures altogether. Therefore, the US financial sector fully supports the EU proposal for regulatory cooperation because it also fiercely objects to extra-territorial controls.7 Disturbingly, the EU's negotiating position is in line with the biggest corporations in the EU and US' financial industries.

Teaming up with “Wall Street”

In its attempt to put these conflicts at the centre of the negotiations, the EU has the full support of its 'domestic' financial sector – indeed the biggest European banks are exercising huge pressure – and the support of financial lobby groups and corporations in the US.8 The reason for this EU alliance with Wall Street is no mystery: the US banks see the EU initiative as another welcome opportunity to attack domestic regulation, and has teamed up with its European counterparts to pressure the US administration. Also, the financial sectors on both sides of the Atlantic want to eliminate differences in regulations which they claim are a ‘cost’ that makes them less profitable, 'forcing' them to search for ways to escape the strictest rules by moving operations to the jurisdiction with the least costly – read weakest – rules.9

Understandably, there seems to be no end to the enthusiasm in the financial lobby community for the EU’s approach. Richard Normington, Senior Manager of the Policy and Public Affairs team at TheCityUK – a key British financial lobby group – has unreservedly promoted the Commission’s approach, commenting that one of the Comission's policy proposals, "reflected so closely the approach of TheCityUK that a bystander would have thought it came straight out of our brochure on TTIP”.10

This formidable alliance between EU negotiators and the financial lobby, is now focusing on the long term option described in the EU proposal: regulatory cooperation 11 that will protect the financial industry against supposedly "costly" new regulations, and potentially undermine existing regulations as well through weakening them at the implementation stage.

Ignoring opposition

The EU proposal has met with resistance from different quarters. EU and US civil society organisations that have followed the financial reform agenda over the past few years are alarmed over the EU’s proposals. And importantly, the US administration has expressed its opposition to agreeing such a mechanism, as financial regulators are concerned that the EU is taking aim at US rules. US Treasury Secretary Jack Lew, for example, has said on several occasions that he opposed the inclusion of financial regulation in the TTIP because, “normally in a trade agreement, the pressure is to lower standards on things like [financial regulation or environmental regulation or labour rules]”. He also said that the US would “not allow these agreements to serve as an opportunity to water down domestic financial regulatory standards”, or “dilute the impact of the steps that we've taken to safeguard the US Economy”.12 But clearly the EU shows no inclination to drop the issue, and shows no real sign of downsizing its ambitions. And its preferred approach to handle this is “regulatory cooperation”.

In reality regulatory cooperation is about continuously ironing out disagreements, divergences, and technical differences between the regulations of the two blocs; that is, its effects go on even long after the TTIP agreement has been concluded. This mechanism appears set to serve the financial sector's wish for deregulation. It covers procedures to be set up to deal with current and future disagreements and differences in regulations, i.e. legislation and the resulting technical standards. The overall aim of setting up a host of mechanisms is to ensure regulatory convergence step by step.13

The principle: do not bother the other side

The European Commission's leaked proposal of March 2014 envisions several tools to keep ambitions for strict regulations of the financial sector at bay. If agreed, they would apply on both sides of the Atlantic: the TTIP principles of regulatory cooperation would be binding on both the EU – they would need to be followed when developing and implementing rules or regulations – and the US. When new rules are planned – even before being proposed to parliamentary bodies – consultation with the other Party would be necessary. In a leaked document from October 2013, the EU clearly spelled out the procedure: “Whenever the EC proposes new legislation potentially having significant effect on transatlantic trade in financial services, the Commission would conduct consultations with the US in advance. The Commission would ensure that the proposed rules [to the European Parliament and the Council of Ministers] reflect the principles of regulatory cooperation agreed in the TTIP”.14

What principles would the proposals be judged on? The key principle is this line in the document: “The Parties avoid introducing rules affecting market operators and the jurisdiction of the other Party, unless there are overriding prudential reasons to introduce such rules, in conformity with Art. 52 (prudential carve-out) – ie. that measures taken to safeguard systemic financial stability.

In this way, the interests of “market operators” are the highest priority, along with a stop to measures of an “extra-territorial nature” – measures which one Party considers an interference into the way financial markets are governed locally. But if all kinds of regulation that can be deemed “extra territorial” is stopped, it could undermine rules that protect citizens, attempts to tax financial transactions (FTT) to reduce speculative trading15, and put a stop to global efforts to control the risky global derivatives markets.

Stability measures under pressure

As in the quote above, the text does allow for governments to take “prudential measures”, but in fact it actually introduces several loopholes for weakening even these. Already – under the main part of the TTIP services negotiations – the EU is proposing to have a “prudential carve-out”, which means prudential measures are indeed allowed. But if the EU has its way, these measures must not be “more burdensome than necessary”16, and with this classic loophole formulation in trade law inserted into an agreement, important regulation can be blocked.17

Now, with the leaked negotiating position on regulatory cooperation, more limits are proposed than those already in the EU draft for the main TTIP treaty text. Since “internationally agreed standards” have to be fully respected in the framework of regulatory cooperation, they could easily become the maximum standards; and they are not always as high as national standards. Moreover, if the EU argues that the outcome of its banking regulation is in line with the international agreement on banking (the Basel III agreement on capital requirements and liquidity), it would be difficult for the US to reject them. If – as is the case in banking – the US rules are stronger, the fact that EU banks could operate in the US following mainly or only EU rules, US banks would be at a disadvantage. This would in turn increase lobby pressure on the US administration to give way and lower standards to the EU level. All mechanisms of “regulatory cooperation” can put measures adopted to ensure financial stability under scrutiny and in the end, result in them being considered barriers to trade that should be eliminated.

Mutual recognition – lowest common denominator

Another key measure to ensure regulatory “convergence” is that the Parties agree on treaty rules that will allow for “mutual reliance/equivalence/substituted compliance” especially of current rules and resulting technical standards that are different – in other words, to the extent that is possible, the other sides' rules are to be accepted as basically equivalent to their own. Therefore, US financial banks and other operators would be able to operate in the EU following the US rules, and vice versa, which are supposed to have the same ‘outcome’. Although both are expected to have rules for which “internationally agreed standards” are the basic, common standard, there are often mismatches that could set a race to the lowest common denominator in motion. This will undermine financial reforms that have been decided through parliamentary processes in both jurisdictions.18 Whenever rules are stricter in one jurisdiction but foreign banks are allowed to operate according to the less strict regime, this will increase pressure on regulators to accept the lowest common denominator since TTIP will provide more arguments for the financial industry that stricter regulations will result in loss of competitiveness to financial corporations from the other side of the Atlantic.

In case of a dispute about mutual recognition, there is to be a joint examination, which can ultimately lead to “technical mediation”. While not a genuine, legally binding “dispute settlement mechanism”, this is to be a procedure that allows for retaliation by the offended party. If an agreement is not reached, the offended party can “exercise claw back powers as regards mutual reliance”, in other words withdraw its recognition of the other party’s rules, which would mean that the financial sector operators of the other party would have to operate fully under the rules of the offended party.

Undemocratic Forum

To drive this process of “mutual recognition”, a body is to be set up: the ”Joint EU/US Regulatory Forum”, and this will have tremendous power in the area. For instance, the “test” to be used when it is to be established whether two sets of rules are equivalent, is going to be developed only at a later stage by this forum. In other words, these standards will even not be revealed when a final TTIP agreement is to be endorsed.

Nor the composition and the modus operandi of the Joint EU/US Regulatory Forum is revealed in the confidential document at this stage, but is to be presented later at the negotiating table. One crucial matter will be to see if financial corporations can count on procedures or presence in “working groups” that will provide them with platforms for lobbying.

The EC proposal clearly states that “stakeholders” can count on “transparency”, which in the terminology used so far in TTIP negotiations and other trade agreements has meant that industry is deeply involved at all stages.19 Such regulatory cooperation would give industry “stakeholders” multiple opportunities to see regulations in draft form and to lobby policymakers against their enactment. It is possible that other “stakeholders” will be invited to comment on a smaller scale, but considering the size and lobby power of the financial industry and the privileged access the EU will be prone to grant to Big Finance “stakeholders”20, it will be dominated by the same European and US banks that have proven their resolve – and success – in chilling and weakening the re-regulation of finance in the EU and United States. Unsurprisingly, the financial “stakeholders” are lobbying hard for a TTIP “regulatory cooperation” mechanism which in the end will become a tool to weaken EU and US regulation.21

Costly rules on finance

In many ways, it is the decisions made in the last few years in response to the financial crisis that are being targeted. But there are more far-reaching implications as well. These rules could block initiatives intended to strengthen democratic control of the financial sector and meet more ambitious ends than merely “financial stability”. The objective in TTIP is certainly not to make sure that rules are adjusted to avoid significantly affecting the service to citizens and the economy of the other party, or to avoid undermining stricter financial rules for effectively preventing financial crises. The proposal is about the interests of financial corporations, not the interests of citizens or society at large.

Prospects become bleak if we consider the options for more ambitious regulation than merely the kind of “prudential measures” that will be allowed for in the proposed scenario. All EU and US free trade agreements with third countries merely refer to the need for financial stability and protection of investors and savers as acceptable grounds for maintaining prudential measures. The measures that are allowed do not include, for instance, increased taxation to make banks pay more to society, or bans on classes of speculative financial instruments that are detrimental to society (e.g. speculation on food prices), or rules on how to ensure lending for the economy or transition to climate friendly production. These would all be measures that could be prevented or made much more complicated by the procedures of regulatory cooperation.

The argument from the EU is that for financial stability to take root, more convergence of regulations is needed. But a TTIP-created process that eliminates all regulatory differences is misguided. Highly interconnected converging financial markets exacerbated the financial crisis and experience shows that not more but less interconnection is needed. Differences between nations on how to impose legally binding regulations, supervision and enforcement should be allowed and respected as the normal outgrowth of democratic policymaking.22 The EU even used the “specificities” of the EU banking sector as an argument to justify why EU banks laws are different, and weaker, than international standards.23 The proposed regulatory cooperation framework emphasizes the loss in profits for the financial industry that can result from divergence in financial regulations and standards. But if convergence and substituted compliance/equivalence agreements results in a weakening of democratically-enacted safeguards and more financial instability, what about the costs to society, the economy and democracy?

Deceptive transparency

It is not the first time that the Commission’s agenda for financial services has come out in the open, but the leaked text of March 2014 which the EC actually sent to the US shows the EC position in an unfiltered way. Already in January 2014 the Commission had posted a document on its website with a description of the Commission’s position on regulatory cooperation in the financial sector, applauding itself for its “policy to strive for a maximum of transparency in the TTIP negotiation process”.24

Some elements of the proposal that was later sent to the US are indeed described in this public document.25 However, other important parts are missing from the public document, such as the role of a “Financial Regulatory Forum”, and the fact that the approach to mutual recognition is to be elaborated only after the TTIP negotiations have been concluded. The proposal to have procedures on dispute settlement, which in the end could lead to retaliation, is also not in the Commission’s public document. Finally, it is only with the actual leaked proposal that it becomes clear that internationally agreed standards can be used to enact downward pressure on financial regulation, as explained above.

More generally, the public document is littered with claims that the true intention of the move is “preventing future crisis” – a line now repeated ad nauseam by Single Market Commissioner Michel Barnier26, whereas in the actual proposal there is merely a single, descriptive line in one article of no consequence: “The Parties agree to work together towards further strengthening of global financial stability.”

Most of the public document is spent on prose based on the thesis that a “fragmented regulatory approach” nurtures financial instability in itself. But financial crisis does not stem from “fragmented markets” or from regulatory divergence. It comes from national deregulation over the past decades and through free trade agreements, including the WTO, which liberalised financial services and capital flows.27

Who is fooling who?

The Commission’s January public document is clearly designed for public consumption – to appease concerns about financial deregulation. Also, it should be seen as part of broad-based efforts by some member states (notably France and the UK acting in unison in the Council) and the Commission to convince the US audience, including some US politicians, that the small advances made on US financial regulation since the crisis are not under threat, and that the intention of the EU is not to weaken regulation.28

However, the actual content of the proposal proves otherwise, and the implications could be dire. If for instance, US authorities press ahead with rules on a binding high “leverage ratio” for banks29, it would be a welcome step forward in efforts to make banks more resilient – but it would force subsidiaries of European banks such as BNP Paribas, Deutsche Bank, and Barclays to acquire substantially more capital reserves. These requirements are depicted by the Commission as undermining the competitiveness of the EU banks as compared with their major US peers30, but what is actually at play is that the US cleaned up and strengthened its banks much earlier and generally has a more ambitious approach in banking regulation than the EU.

But if the EU has its way regarding regulatory cooperation at the TTIP negotiations, the tables would be turned. The mechanisms could also turn against implementation of EU regulations that are currently stricter than the US, such as high frequency trading, and hedge funds – types of regulation strongly opposed by the US financial industry. Bold and timid advances alike in financial reforms would risk being buried by the mechanisms of regulatory cooperation. These serious consequences can be avoided if the EU changes its position in TTIP on regulatory cooperation.

What the financial lobby wants from TTIP

Some examples from financial corporations' wish-list.

Restricting "prudential measures" to be taken

The European Banking Federation (EBF) wants governmental ability to take "prudential measures" unaffected by TTIP clauses to be severely restricted and only to apply when the measures are closely related to financial stability, investor and/or client protection, and when there are “unsurmountable differences” in EU and US provisions that “cannot be bridged in the foreseeable future”. Such a restricted interpretation of governmental ability to legislate under the so-called prudential carve-out would mean that the dominant way of regulating would be the EU and US creating common rules; the two blocs would only be able to introduce financial reforms independently of one another after a long process by which it becomes clear that they cannot have common rules.31

Undermine hedge funds and derivatives transparency

Regulations for “certain transactions” should not cover foreign investors, if for instance they deal with “sophisticated investors”. That means regulation on transparency of hedge funds in the EU would not apply to US funds, and US rules on derivatives reporting would not apply to European financial firms.32

Drop ban on speculation

Banks in the US – including subsidiaries of European banks – are barred from making risky bets with federally insured money for their own profit (“swap desk pushout”). This has annoyed Deutsche Bank. Along with other German banks in the Association for German Banks, they complain that such a demand is discriminatory and an example of unilateral extraterritorial conduct.33

Drop extra safety for megabanks

The US is considering extra capital requirements for foreign banks as well as national banks. This has created a stir in the European financial sector, which feels more comfortable with the lenient and slow approach of the EU. The lobby group the European Services Forum, which includes some of the biggest banks, believes it should not be possible for the US to declare a European bank so big that this extra capital is needed.34

Drop safety rules for investment firms

Insurance Europe wants to do away with state-level rules in the US that are meant to keep insurance companies from conducting overly risky speculation (leverage rules).35

Drop supervision of foreign banks

Deutsche Bank and Barclays are among the European banks who prefer not to operate under US rules in the US, and to be supervised by the European Central Bank, not the US authorities. However, the US has now closed the last loopholes and insists on its right to keep an eye on big foreign banks – some of which were major sources to financial instability in 2008.

As risky as Lehman Brothers

The US is on course to adopt rules on how much a big bank can borrow, compared to its capital – the so-called leverage ratio. The yardstick is to ensure that banks are not as risky as Lehman Brothers and have enough financial reserves in case of crisis. In the EU, on the other hand, at best, a similar ratio will be adopted, but most likely a ratio at the same level as Lehman Brothers had before it went under will be allowed. In the TTIP debate, the bank lobby group Eurofi, is among those who have voiced its concern over the US rules.36 European banks continue to fight hard to stave off the challenge of a restrictive leverage ratio in Europe.37

Other reforms that could be undermined or complicated by a TTIP agreement on financial regulation due huge differences between the EU and US include rules on banking structure to tackle too big to fail banks, rules on credit exposure to a single “counterparty”, money market reforms to tackle shadow banking, financial transaction tax, transparency on the derivatives markets, and liquidity of banks.38

21. The major lobby associations, some of which include both European and US financial corporations as their members, are producing large numbers of statements on regulatory cooperation within TTIP, many of which are very specific on content, and generally supportive of the EU position. One example is the SIFMA and AFME statement of 30 April 2014: http://www.sifma.org/issues/item.aspx?id=8589943539.

Our regulators troll our banking managers because they bought AAA rated Us mortgage products. The US turned Europe's banking sector into a "bad bank" of their regulatory failure and expansive monetary policy. Europeans paid with welfare losses for their regulatory failure. The European economy and our European banks got into severe trouble. No US regulator apologized to Europeans.

Now Europe approximates their financial regulation with the US via TTIP. This is beyond my comprehension. That isn't right. That feels bad.

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Corporate Europe Observatory (CEO) is a research and campaign group working to expose and challenge the privileged access and influence enjoyed by corporations and their lobby groups in EU policy making.

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